Adams v. City of Raleigh

• Decision Date: 16 February 2016
• Docket Number: No. COA15–782.,COA15–782.
• Citation: 782 S.E.2d 108,245 N.C.App. 330
• Court: North Carolina Court of Appeals
• Parties: Kenneth C. ADAMS, Plaintiff, v. The CITY OF RALEIGH, Defendant.

245 N.C.App. 330

782 S.E.2d 108

Kenneth C. ADAMS, Plaintiff,

v.The CITY OF RALEIGH, Defendant.

No. COA15–782.

Court of Appeals of North Carolina.

Feb. 16, 2016.

Meynardie & Nanney, PLLC, Raleigh, by Joseph H. Nanney, for plaintiff-appellant.

City Attorney, Thomas A. McCormick, by Deputy City Attorney, Hunt K. Choi, for defendant-appellee.

ELMORE, Judge.

Kenneth Adams (plaintiff) was arrested for violating the City of Raleigh's Amplified Entertainment Permit (AEP) Ordinance. After the charge was dropped, plaintiff sued the City of Raleigh (defendant). Plaintiff appeals from the trial court's order granting defendant's motion for summary judgment. After careful consideration, we affirm.

I. Background

In August 2011, plaintiff and his fiancée, LaToya Turner, rented commercial space on Capital Boulevard in Raleigh "for the express purpose of opening a teen club to provide at-risk youth a non-violent and drug-free place to socialize." Plaintiff and Turner formed a limited liability company named, "Juice Bar Teen–Lounge" (Juice Bar). On 15 August 2011, plaintiff obtained a City of Raleigh business license for Juice Bar. The following day, Turner submitted an application to defendant for an AEP. On the application, Turner listed herself as a partner, plaintiff as the owner, the type of business as "event center," and the business start date as 15 August 2011. The application instruction sheet lists telephone numbers for Building Inspections and Fire Prevention, and states, "The applicant for an Amplified Entertainment Permit is responsible for scheduling the required inspections." It further states, "Please allow at least 90 days from your application date until you plan to begin providing Amplified Entertainment." Turner paid the $250 non-refundable application fee but did not pay the additional $250 permit fee.

Also on 16 August 2011, Turner contacted David Hickman, who at that time was the Code Enforcement Specialist, to conduct a courtesy inspection of Juice Bar. In Hickman's affidavit, he stated that the City Inspections Department offered courtesy inspections "as a public service" that were "not intended to be comprehensive, but were intended to identify obvious and serious issues." Hickman stated that after the courtesy inspection, he discussed with Turner the limited occupant load and the required music shut-off switch, and he recommended that plaintiff and Turner proceed with applying for their AEP in order to initiate the formal inspection process. Hickman clarified that a business may open "upon purchase of a business license, and mere purchase of a business license does not in itself trigger any inspection requirements. However, if a business wishes to provide amplified entertainment, it must first obtain an AEP." Hickman stated that neither plaintiff nor Turner requested an AEP inspection. Plaintiff answered as follows in an interrogatory: "On or about August 15, 2011, J.W. Pinder, the deputy fire marshal, told me that fire extinguishers needed to be placed on the walls in a visible location, that the ceiling tiles needed to be replace[d], that he needed certain prior inspections, and that he would be happy to come back out for a reinspection."

Days later, on 19 August 2011, plaintiff and Turner held a grand opening for Juice Bar. City of Raleigh Police Sergeant Michael Peterson obtained a social media advertisement from the Raleigh Police Department Intelligence Center indicating that approximately 700 teenagers planned to attend.¹ In order to learn more about Juice Bar, Sergeant Peterson contacted Joette Holman, City of Raleigh License Review Technician, and David Hickman in the City's Inspections Department. Holman informed Sergeant Peterson that defendant did not issue Juice Bar an AEP but that an application had been submitted. Hickman told Sergeant Peterson that the requisite inspections for the AEP had not been conducted.

Holman informed her supervisor, Sergeant Austin, about her conversation with Sergeant Peterson. Sergeant Austin then added Juice Bar to Netforces' list of nightclubs to inspect on 19 August 2011. Netforces, a multi-agency task force, is comprised of members of the City of Raleigh's Inspections Department, Police Department, and Fire Department, as well as representatives of Wake County and the State of North Carolina. "Netforces conducts inspections of nightclubs in the City of Raleigh and attempts to identify structural deficiencies, fire code violations, license violations, and health code violations."

Sergeant Peterson and Officer M.T. McKee drove separately to Juice Bar to observe the grand opening. When Sergeant Peterson arrived, he saw Officer G.T. Porter enter Juice Bar. Officer Porter was off-duty and providing security services at an adjacent grocery store. When Sergeant Peterson saw Officer Porter leave Juice Bar, he called Officer Porter to ask the purpose of his visit. Officer Porter stated that he approached Juice Bar out of curiosity, that he met the owner and informed him about Netforces, and that he advised the owner to make sure he obtained all requisite permits to operate his business.

Shortly thereafter, the Netforces team arrived at Juice Bar and observed violations of the fire code and health code. Plaintiff was identified as the owner and was issued a citation for selling food in violation of N.C. Gen.Stat. § 130A–248(b). A member of the Netforces team asked plaintiff to provide a copy of his business licenses and permits, and when plaintiff could not produce an AEP, Sergeant Peterson directed Officer McKee to arrest him. In Sergeant Peterson's affidavit, he stated,

15. Based on my observations at the Juice Bar Teen Lounge on August 19, 2011, my earlier conversations with Ms. Holman and Mr. Hickman, and information I gathered during the Netforces inspection from members of the Netforces inspection team, I concluded that there was probable cause to believe that Plaintiff had violated the AEP Ordinance by providing amplified entertainment without first obtaining an AEP.

16. Because I knew that the Plaintiff had been provided information about the AEP ordinance and its requirements during the application process, and that Plaintiff had been specifically warned by Officer Porter to be certain that he had obtained all necessary permits, I determined that Plaintiff's blatant violation of the AEP Ordinance warranted his arrest.

Plaintiff was charged with operating a business without first obtaining licenses and permits required by the Raleigh City Code. The magistrate's order states, "Subject failed to have a priviledge [sic] business permit and an amplified entertainment permit." The parties concede that plaintiff did not possess an AEP on 19 August 2011. On 16 August 2012, plaintiff filed a complaint in federal court alleging claims against defendant and Officer McKee in his individual capacity. On 30 September 2013, the parties filed a stipulation that all claims against Officer McKee were dismissed without prejudice. On 20 May 2014, the federal court dismissed plaintiff's remaining claims without prejudice. Because the claim for which the court had original jurisdiction was dismissed by stipulation, the court declined to exercise supplemental jurisdiction over the remaining state-law claims.

On 19 June 2014, plaintiff filed a complaint in Wake County Superior Court alleging the following claims against defendant: false imprisonment/false arrest; malicious prosecution; and violations of Article I, Sections 1, 19 – 21, and 35 – 36 of the North Carolina Constitution. Plaintiff filed an amended complaint on 1 October 2014. On 17 November 2014, defendant filed an answer to plaintiff's complaint, and on 2 February 2015, defendant filed a motion for summary judgment. Defendant argued there was no genuine issue of material fact and it was entitled to judgment as a matter of law because (1) plaintiff's arrest was supported by probable cause; (2) immunity barred plaintiff's claims; (3) the existence of common law remedies barred plaintiff's North Carolina constitutional claims; and (4) no statutory basis supported plaintiff's claim for punitive damages.

On 30 March 2015, the superior court granted defendant's motion for summary judgment and dismissed with prejudice all of plaintiff's claims. The court did not specify in the order the basis for its ruling. Plaintiff appeals.

II. Analysis

"On appeal, this Court reviews an order granting summary judgment de novo. " Manecke v. Kurtz, 222 N.C.App. 472, 475, 731 S.E.2d 217, 220 (2012) (citations omitted). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." Smith v. Cnty. of Durham, 214 N.C.App. 423, 430, 714 S.E.2d 849, 854 (2011) (citation and quotations omitted).

A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A–1, Rule 56(c) (2013). "In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party." Azar v. Presbyterian Hosp., 191 N.C.App. 367, 370, 663 S.E.2d 450, 452 (2008) (citing Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) ). "The moving party bears the burden of showing that no triable issue of fact exists." Id. (citing Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) ). "Once the moving party has met its burden, the non-moving party must forecast evidence that demonstrates the existence of a prima facie case." Id. (citing Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) ). "If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal." Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d...